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Present: Hon. Shlomo Hagler
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HELEN SILLER.
Plaintiff,
-against-
THE THIRD BREVOORT CORPORATION,
Defendant.
At an IAS Term, Part 17, of the
Supreme Court of the State of New
York, held in and for the County of
New York, at Room 335, 60 Centre
Street, New York, New York 10007,
on the 17th day of March, 2014.
Index No.: 151313/2014
PRELIMINARY INJUCTION
Upon the papers I have reviewed in this action, including the Emergency Affirmation of
Stephen I. Siller, the Affidavits of Joanne Gallo and Helen Siller, each sworn to on February 16,
2014, respectively, the February 13, 2014 Verified Complaint, and the accompanying February
17, 2014 Memorandum of Law; the March 10, 2014 Verified Answer, the Affirmation of
Defendant’s president, dated February 17, 2014, the March 10, 2014 Affirmation of Barry G.
Margolis, and Defendant’s March 10, 2014 Memorandum of Law; and the further Affirmation of
Stephen I. Siller, dated March 14, 2014, the March 8, 2014 Affidavit of Stephen Ross, the March
13, 2014 Affidavit of Edwin Thirlby, the March 13, 2014 Affidavit of Helen Siller; and
Plaintiff's proposed form of Preliminary Injunction; and upon all the other papers and the
proceedings heretofore filed and had herein, the Court finds that:1, Having made no previous request for a provisional remedy in this action, Plaintiff
is entitled to a preliminary injunction pursuant to Civil Practice Law and Rules (“CPLR”) § 6301
and 6311, restraining Defendant and all others acting in concert or by or through the authority of
Defendant, from the commission or continuance of an act, which, if committed or
continued during the pendency of this action, would produce injury to Plaintiff in violation of
Plaintiff's rights regarding the subject matter of this action.
2. Plaintiff's Lease, Alteration Agreement and Dryer Vent Inspection Letter, when
read together, require Plaintiff to maintain, repair and replace her existing washer, gas dryer and
vent to her terrace, and accordingly no new alterations agreement is required to be executed by
Plaintiff since the foregoing agreements already address what Plaintiff must do and, moreover,
requiring Plaintiff to sign a new alterations agreement would be tantamount to the Court
compelling Plaintiff to agree with Defendant as to all matters in issue in this action, which the
Court will not do.
3. Plaintiff has demonstrated a substantial likelihood of success on the merits
regarding her washer since it does not appear that the brand of washing machine in any way
determines the amount of suds produced but, contrary to what Defendant represented to this
Court, it is the quantity and nature of the detergent that determines the suds. Plaintiff has
demonstrated that the washing machine Plaintiff proposes to install is just as if not more energy
and water efficient as Defendant’s three specified brands, and is as much a low sudsing machine
as defendant’s specified brands. The Court further finds that Defendant's specification of brands
of appliances as opposed to specifications such as being Energy Star rated, is neither reasonable
nor necessary for the management and control of the Building as Lease {16 requires all House
Rules to be.4. Plaintiff has demonstrated a substantial likelihood of success on the merits
regarding her dryer vent and gas dryer. The Court allows Plaintiff to continue using her external
vent to which a gas dryer may vent. That vent has existed for 23 years pursuant to the Lease,
Alteration Agreement and Dryer Vent Inspection Letter referred to in the Verified Compalint,
and it is clear that Plaintiff's attorney referred to the gas dryer and external vent when Plaintiff
sought approval on December 5, 1995 to install a vent through the bricks for a new stove
Plaintiff wanted to install, which Defendant also approved. Moreover, Defendant’s House Rules
prohibit window air conditioners and mandate through-the-bricks air conditioners so the number
of brick penetrations can only increase which negates Defendant's assertion that defendant wants
to limit or reduce the number of brick penetrations in the Building, especially since Plaintiff's
existing dryer vent is weatherproof and watertight. Defendant’s reliance on unspecified rules of
the Landmarks Preservation Commission is unavailing since those rules are not in evidence and
the so-called uniform look of the exterior of the Building is not affected by Plaintiff's 23 year old
existing dryer vent that is on her set-backed terrace and is not visible from the street.
5. Plaintiff is suffering irreparable injury if this Preliminary Injunction is not
granted. Irreparable harm is found in that Plaintiff (a) bought her second apartment and paid for
all her 1990 renovations in the expectation that defendant would not revoke its approval granted
in 1990, (b) is being forced by Defendant’s actions to live without what has become a necessity
to this 63 year old Plaintiff, and (c) is required under her Lease, Alteration Agreement and Dryer
Vent Inspection Letter to maintain, repair and replace her washer and dryer and if she fails to do
that, Plaintiff appears justifiably concerned that this Defendant would assert that Plaintiff is not
complying with her obligations under the Lease, Alteration Agreement and Dryer Vent
Inspection Letter.6. A balancing of the equities tips strongly in Plaintiff's favor. Plaintiff paid
Defendant an alteration fee in 1990 when she combined her two apartments and installed a
washer, gas dryer and vent out to her terrace, and has paid the maintenance on the two
apartments ever since purchasing both. Plaintiff signed the Lease, Alteration Agreement and
was copied on the Dryer Vent Inspection Letter in the expectation that Plaintiff would be able to
quietly enjoy her apartments as renovated, inclusive of the washer, gas dryer and vent to the
exterior on her terrace, for the duration of the Lease.
7. This Preliminary Injunction does not give Plaintiff all the relief she seeks since
there are at least thirteen counts seeking relief in her Verified Complaint and, as to the first
Count dealing with the washer, dryer and external vent, there remains the issue of whether
Plaintiff must install a flood control device and catch pan which Plaintiff's two experts in their
Affidavits say are fairly useless. The Court notes that Plaintiff's experts state that a water shut-
off valve is the best method to prevent leaks and Plaintiff has had such a water shut-off valve for
all 23 years she has had a washer in her apartment.
8. The Court fails to see how Defendant is harmed at all if Plaintiff can replace what
she has with similar appliances since doing so really is no different than if Plaintiff sent those
appliances out to be repaired, returned and reconnected to the exact same electric, water, drain,
gas and duct connections, only here parts are no longer available for Plaintiff's 23 year old
washer. Defendant has approved and lived with the small dryer vent for all 23 years it has
existed so Defendant cannot be prejudiced by its continued existence. Defendant cannot invoke
its 2010 or 2012 House Rules to abrogate these rights Plaintiff has enjoyed under her Lease,
Alteration Agreement and Dryer Vent Inspection Letter for 23 years and for which Plaintiff gave
Defendant consideration. The Business Judgment Rule does not apply here because of the pre-existing Lease, Alteration Agreement, Dryer Vent Inspection Letter, and alterations that Plaintiff
is under those agreements required to repair, maintain and replace. Those agreements give
Plaintiff rights as well as obligations. Defendant’s new House Rules must be “reasonable” and
“necessary for the management and control of the building” in accordance with Lease €16, and I
find that Defendant's attempt to impose the House Rules adopted after Defendant and Plaintiff
executed those agreements and Plaintiff did her alterations, is impermissible in the circumstances
here and is not protected by the Business Judgment Rule.
NOW, THEREFORE, on the motion of Plaintiff, by her attorney, Stephen I. Siller, it is
ORDERED, that:
qd) The Defendant is enjoined, either directly or indirectly, for the duration of
the Leases to apartments 12R and 12T in Defendant’s Building known as 11 Fifth Avenue, New
York, NY 10003, or The Brevoort, from interfering with or refusing to allow Plaintiff to replace
her washer and gas dryer that will connect to Plaintiff's existing electrical outlets and gas inlet
pipe, through the bricks exhaust vent, and water and drain connections, provided Plaintiff
delivers to Defendant or Defendant’s Managing Agent an insurance certificate from Plaintiff's
appliance retailer in form and substance which is the same or substantially the same as the
insurance certificate the same supplier delivered to Defendant in 2013 when Defendant allowed
Plaintiff to replace an air-conditioner without Plaintiff being required by Defendant to sign a new
alterations agreement (a copy of which insurance certificate Plaintiff provided to the Court in
Exhibit 9 to Plaintiff's Reply Affidavit);
(2) The requirement that Plaintiff post a bond be waived as long as Plaintiff
provides the aforesaid insurance certificate; and(3) Plaintiff is not at this time required to install an under-washer catch pan or
flood control device but is required to maintain her water shut-off valve, and the issue as to
whether Plaintiff must maintain an under-washer dryer and a flood control device will remain as
extant issues in the case.
(4) The parties and their counsel are directed to attend a preliminary
conference before the Court on 2014 at__ am/pm, at [AS
Part 17 in Room 335, 60 Centre Street, New York, New York 10007, at which the Court will
determine an appropriate amount of just and reasonable damages and/or legal fees to be awarded
to Plaintiff because it is clear to the Court that Defendant’s assertions in its reply papers on at
least five issues identified by Plaintiff and her counsel appear to have been false or misleading
and, therefore, this matter would have been preliminarily resolved at the first hearing before the
Court on February 18, 2014 during which the Court advised counsel to the parties that:
e Based on the Court’s familiarity with the law involving coops and alteration
agreements, the business judgment rule did not apply in this case at this time on this
Motion.
¢ The Court would grandfather Plaintiff's continued use of the gas dryer and its vent
out on to Plaintiff's terrace.
¢ Plaintiff's counsel should provide defendant’s counsel with the sudsing specifications
for the Frigidaire washer Plaintiff desired to install and if the sudsing of that washer
was comparable to or better than the sudsing of defendant’s brands, the Court would
allow Plaintiff to purchase and install that washer.
The Court finds that (a) Plaintiff's attorney on February 19, 2014 followed the Court’s
directive in providing the relevant research to Defendant’s counsel that demonstrates thatDefendant’s assertion that suds are determined by the brand of machine was false or misleading,
(b) on February 20, 2014 Plaintiff's counsel asked Defendant’s counsel to correct Defendant’s
president’s Affirmation 15 in which she said Plaintiff's brand was not a low sudsing machine as
Defendant’s selected brands allegedly are, and (c) Defendant has not made that correction and
thereby appears to have continued to mislead the Court and unjustifiably delay this proceeding.
ENTER,
Hon. Shlomo Hagler, J.S.C.
Date: » 2014
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Present: Hon. Shlomo Hagler SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HELEN SILLER. Plaintiff, -against- THE THIRD BREVOORT CORPORATION, Defendant. At an IAS Term, Part 17, of the Supreme Court of the State of New York, held in and for the County of New York, at Room 335, 60 Centre Street, New York, New York 10007, on the 17th day of March, 2014. Index No.: 151313/2014 PRELIMINARY INJUCTION Upon the papers I have reviewed in this action, including the Emergency Affirmation of Stephen I. Siller, the Affidavits of Joanne Gallo and Helen Siller, each sworn to on February 16, 2014, respectively, the February 13, 2014 Verified Complaint, and the accompanying February 17, 2014 Memorandum of Law; the March 10, 2014 Verified Answer, the Affirmation of Defendant’s president, dated February 17, 2014, the March 10, 2014 Affirmation of Barry G. Margolis, and Defendant’s March 10, 2014 Memorandum of Law; and the further Affirmation of Stephen I. Siller, dated March 14, 2014, the March 8, 2014 Affidavit of Stephen Ross, the March 13, 2014 Affidavit of Edwin Thirlby, the March 13, 2014 Affidavit of Helen Siller; and Plaintiff's proposed form of Preliminary Injunction; and upon all the other papers and the proceedings heretofore filed and had herein, the Court finds that:1, Having made no previous request for a provisional remedy in this action, Plaintiff is entitled to a preliminary injunction pursuant to Civil Practice Law and Rules (“CPLR”) § 6301 and 6311, restraining Defendant and all others acting in concert or by or through the authority of Defendant, from the commission or continuance of an act, which, if committed or continued during the pendency of this action, would produce injury to Plaintiff in violation of Plaintiff's rights regarding the subject matter of this action. 2. Plaintiff's Lease, Alteration Agreement and Dryer Vent Inspection Letter, when read together, require Plaintiff to maintain, repair and replace her existing washer, gas dryer and vent to her terrace, and accordingly no new alterations agreement is required to be executed by Plaintiff since the foregoing agreements already address what Plaintiff must do and, moreover, requiring Plaintiff to sign a new alterations agreement would be tantamount to the Court compelling Plaintiff to agree with Defendant as to all matters in issue in this action, which the Court will not do. 3. Plaintiff has demonstrated a substantial likelihood of success on the merits regarding her washer since it does not appear that the brand of washing machine in any way determines the amount of suds produced but, contrary to what Defendant represented to this Court, it is the quantity and nature of the detergent that determines the suds. Plaintiff has demonstrated that the washing machine Plaintiff proposes to install is just as if not more energy and water efficient as Defendant’s three specified brands, and is as much a low sudsing machine as defendant’s specified brands. The Court further finds that Defendant's specification of brands of appliances as opposed to specifications such as being Energy Star rated, is neither reasonable nor necessary for the management and control of the Building as Lease {16 requires all House Rules to be.4. Plaintiff has demonstrated a substantial likelihood of success on the merits regarding her dryer vent and gas dryer. The Court allows Plaintiff to continue using her external vent to which a gas dryer may vent. That vent has existed for 23 years pursuant to the Lease, Alteration Agreement and Dryer Vent Inspection Letter referred to in the Verified Compalint, and it is clear that Plaintiff's attorney referred to the gas dryer and external vent when Plaintiff sought approval on December 5, 1995 to install a vent through the bricks for a new stove Plaintiff wanted to install, which Defendant also approved. Moreover, Defendant’s House Rules prohibit window air conditioners and mandate through-the-bricks air conditioners so the number of brick penetrations can only increase which negates Defendant's assertion that defendant wants to limit or reduce the number of brick penetrations in the Building, especially since Plaintiff's existing dryer vent is weatherproof and watertight. Defendant’s reliance on unspecified rules of the Landmarks Preservation Commission is unavailing since those rules are not in evidence and the so-called uniform look of the exterior of the Building is not affected by Plaintiff's 23 year old existing dryer vent that is on her set-backed terrace and is not visible from the street. 5. Plaintiff is suffering irreparable injury if this Preliminary Injunction is not granted. Irreparable harm is found in that Plaintiff (a) bought her second apartment and paid for all her 1990 renovations in the expectation that defendant would not revoke its approval granted in 1990, (b) is being forced by Defendant’s actions to live without what has become a necessity to this 63 year old Plaintiff, and (c) is required under her Lease, Alteration Agreement and Dryer Vent Inspection Letter to maintain, repair and replace her washer and dryer and if she fails to do that, Plaintiff appears justifiably concerned that this Defendant would assert that Plaintiff is not complying with her obligations under the Lease, Alteration Agreement and Dryer Vent Inspection Letter.6. A balancing of the equities tips strongly in Plaintiff's favor. Plaintiff paid Defendant an alteration fee in 1990 when she combined her two apartments and installed a washer, gas dryer and vent out to her terrace, and has paid the maintenance on the two apartments ever since purchasing both. Plaintiff signed the Lease, Alteration Agreement and was copied on the Dryer Vent Inspection Letter in the expectation that Plaintiff would be able to quietly enjoy her apartments as renovated, inclusive of the washer, gas dryer and vent to the exterior on her terrace, for the duration of the Lease. 7. This Preliminary Injunction does not give Plaintiff all the relief she seeks since there are at least thirteen counts seeking relief in her Verified Complaint and, as to the first Count dealing with the washer, dryer and external vent, there remains the issue of whether Plaintiff must install a flood control device and catch pan which Plaintiff's two experts in their Affidavits say are fairly useless. The Court notes that Plaintiff's experts state that a water shut- off valve is the best method to prevent leaks and Plaintiff has had such a water shut-off valve for all 23 years she has had a washer in her apartment. 8. The Court fails to see how Defendant is harmed at all if Plaintiff can replace what she has with similar appliances since doing so really is no different than if Plaintiff sent those appliances out to be repaired, returned and reconnected to the exact same electric, water, drain, gas and duct connections, only here parts are no longer available for Plaintiff's 23 year old washer. Defendant has approved and lived with the small dryer vent for all 23 years it has existed so Defendant cannot be prejudiced by its continued existence. Defendant cannot invoke its 2010 or 2012 House Rules to abrogate these rights Plaintiff has enjoyed under her Lease, Alteration Agreement and Dryer Vent Inspection Letter for 23 years and for which Plaintiff gave Defendant consideration. The Business Judgment Rule does not apply here because of the pre-existing Lease, Alteration Agreement, Dryer Vent Inspection Letter, and alterations that Plaintiff is under those agreements required to repair, maintain and replace. Those agreements give Plaintiff rights as well as obligations. Defendant’s new House Rules must be “reasonable” and “necessary for the management and control of the building” in accordance with Lease €16, and I find that Defendant's attempt to impose the House Rules adopted after Defendant and Plaintiff executed those agreements and Plaintiff did her alterations, is impermissible in the circumstances here and is not protected by the Business Judgment Rule. NOW, THEREFORE, on the motion of Plaintiff, by her attorney, Stephen I. Siller, it is ORDERED, that: qd) The Defendant is enjoined, either directly or indirectly, for the duration of the Leases to apartments 12R and 12T in Defendant’s Building known as 11 Fifth Avenue, New York, NY 10003, or The Brevoort, from interfering with or refusing to allow Plaintiff to replace her washer and gas dryer that will connect to Plaintiff's existing electrical outlets and gas inlet pipe, through the bricks exhaust vent, and water and drain connections, provided Plaintiff delivers to Defendant or Defendant’s Managing Agent an insurance certificate from Plaintiff's appliance retailer in form and substance which is the same or substantially the same as the insurance certificate the same supplier delivered to Defendant in 2013 when Defendant allowed Plaintiff to replace an air-conditioner without Plaintiff being required by Defendant to sign a new alterations agreement (a copy of which insurance certificate Plaintiff provided to the Court in Exhibit 9 to Plaintiff's Reply Affidavit); (2) The requirement that Plaintiff post a bond be waived as long as Plaintiff provides the aforesaid insurance certificate; and(3) Plaintiff is not at this time required to install an under-washer catch pan or flood control device but is required to maintain her water shut-off valve, and the issue as to whether Plaintiff must maintain an under-washer dryer and a flood control device will remain as extant issues in the case. (4) The parties and their counsel are directed to attend a preliminary conference before the Court on 2014 at__ am/pm, at [AS Part 17 in Room 335, 60 Centre Street, New York, New York 10007, at which the Court will determine an appropriate amount of just and reasonable damages and/or legal fees to be awarded to Plaintiff because it is clear to the Court that Defendant’s assertions in its reply papers on at least five issues identified by Plaintiff and her counsel appear to have been false or misleading and, therefore, this matter would have been preliminarily resolved at the first hearing before the Court on February 18, 2014 during which the Court advised counsel to the parties that: e Based on the Court’s familiarity with the law involving coops and alteration agreements, the business judgment rule did not apply in this case at this time on this Motion. ¢ The Court would grandfather Plaintiff's continued use of the gas dryer and its vent out on to Plaintiff's terrace. ¢ Plaintiff's counsel should provide defendant’s counsel with the sudsing specifications for the Frigidaire washer Plaintiff desired to install and if the sudsing of that washer was comparable to or better than the sudsing of defendant’s brands, the Court would allow Plaintiff to purchase and install that washer. The Court finds that (a) Plaintiff's attorney on February 19, 2014 followed the Court’s directive in providing the relevant research to Defendant’s counsel that demonstrates thatDefendant’s assertion that suds are determined by the brand of machine was false or misleading, (b) on February 20, 2014 Plaintiff's counsel asked Defendant’s counsel to correct Defendant’s president’s Affirmation 15 in which she said Plaintiff's brand was not a low sudsing machine as Defendant’s selected brands allegedly are, and (c) Defendant has not made that correction and thereby appears to have continued to mislead the Court and unjustifiably delay this proceeding. ENTER, Hon. Shlomo Hagler, J.S.C. Date: » 2014